Thursday, December 20, 2012

US v. Tillery: A man with a gun robbed a dry cleaner's in Petersburg, Virginia, taking a small amount of cash and the clerk's laptop. After he left, the clerk ran to the barbershop next door for help. Later that month, someone came to the barber shop and sold the owner a laptop, which turned out to be the one taken from the clerk. The owner identified Tillery from a photo array as the one who sold him the laptop. The clerk then identified Tillery as the man who committed the robbery. A few months later, an officer recovered two shotguns from an abandoned motel, next to a motel where Tillery lived at the time of the robbery. Tillery was in jail at the time and described the robbery and where he kept his guns to his cellmate in "shocking detail." He was charged and convicted of a Hobbs Act robbery and brandishing a firearm in connection with a crime of violence, then sentenced to a combined term of 360 months in prison.

On appeal, Tillery challenged both his convictions and sentence, all of which the Fourth Circuit affirmed. First, Tillery argued that the robbery did not meet the Hobbs Act threshold of having a "minimal effect" on interstate commerce, because it only resulted in the theft of $100. The court disagreed, noting that a robbery has a "minimal effect" if it depletes the assets of an inherently economic enterprise and that in making that determination it is not the individual act that matter, but rather the "relevant class of actions" and the impact they have on interstate commerce. The robbery in this case met that burden. Second, Tillery argued that the evidence was insufficient to convict him on either count. The court disagreed, concluding that there was ample evidence aside from the clerk's identification of him as the robber (including the "damning testimony" of his cellmate) to support a conviction. Finally, Tillery argued that he was improperly classified as a career offender because a prior conviction for eluding police was not a "crime of violence." The court disagreed, noting that it had previously held that any "intentional vehicular flight" is a violent felony.

US v. Ayesh: Ayesh, who lived in Jordan, was hired to oversee shipping and customs at the US Embassy in Baghdad. In that role, he created a scheme that allowed him to funnel funds from vendors to his wife's bank account in Jordan. He kept the various instruments needed to run the scheme in his apartment in the Embassy. Ayesh was arrested at Dulles when he came for a training seminar (which was just a ruse to get him in the country). He was charged with two counts of theft of public money and one count of committing acts affecting a personal financial interest. He was convicted on all counts and sentenced to 42 months in prison.

On appeal, Ayesh raised three challenges to his convictions, all of which the Fourth Circuit rejected. First, he argued that the district court in Virginia lacked jurisdiction over him given that his conduct took place in Iraq and Jordan. The court disagreed, holding that, although the statutes involved do not specifically apply to conduct that occurs overseas, they were enacted out of the right of the Government to defend itself from fraud and do not require such a specific jurisdictional nexus. The court also concluded that the prosecution comported with international law and due process, as Ayesh had been told as part of his employment that he was subject to the laws of the United States. Second, Ayesh argued that his post-arrest statements should have been suppressed because they came during a lengthy interview conducted after a 19-hour flight and had been coerced. The court disagreed, concluding that Ayesh was given Miranda warnings, was fluent in English, and "asked good questions and spoke confidently on his own behalf." Finally, Ayesh argued that there was insufficient evidence to support the two theft of public money counts. The court concluded there was sufficient evidence from which the jury could find intent to deprive the United States of the use or benefit of the money involved.

US v. Smith: Smith was the driver of a car that rolled and crashed into a wall on the Baltimore-Washington Parkway. A passenger was killed and Smith showed signs of intoxication before and after the crash. Nearly three hours after the crash, Smith was given a blood test that showed a blood alcohol content of 0.09. She was charged with misdemeanor manslaughter, with the underlying offense being operation of a motor vehicle with a blood alcohol content above 0.08. At trial, a Government expert witness testified not just to the alcohol content of Smith's blood as tested, but about how human bodies both absorb and eliminate alcohol from their system, pegging the rate of elimination for women at 0.017 per hour. Smith was convicted after a jury trial.

On appeal, Smith challenged her conviction on several grounds, all of which the Fourth Circuit rejected. First, she argued that the Government's expert should not have been allowed to testify about generic alcohol absorption/elimination rates because it was beyond the scope of the pretrial notice of the subject of the expert's testimony. The court disagreed, concluding that "although full disclosure by the government would have been more in keeping with the spirit of Rule 16," the testimony at issue was general background information and not tied directly to an expert opinion about Smith. At any rate, if there was any error, it was harmless. Second, Smith argued that the evidence was not sufficient to prove she had a blood alcohol level of at least 0.08 at the time of the crash (as opposed to several hours afterward). The court disagreed, concluding that there was enough evidence to conclude that she violated the statute, including that the expert's testimony about absorption/elimination rates made it highly unlikely that her blood alcohol level was below 0.09 before the accident. Finally, the court rejected her argument that the district court erred by refusing to instruct the jury that the blood test result, standing alone, was insufficient evidence to convict her.

US v. Carpio-Leon: Carpio-Leon had lived in the country illegally for 13 years, with his wife and three children (all of whom were born in the US). During a consensual search of Carpio-Leon's house (the opinion doesn't say based on what) officers recovered firearms and ammunition. Carpio-Leon was charged with being an illegal alien in possession of a firearm and illegal entry into the US. After the district court denied his motion to dismiss under Heller, Carpio-Leon pleaded guilty, sentenced to time served, and ordered deported.
On appeal, Carpio-Leon renewed his Second Amendment challenged to the illegal alien in possession of a firearm statute (922(g)(5)).

The Fourth Circuit affirmed his conviction and sentence. Rather than resolve the issue of whether illegal immigrants were part of "the people" as understood at the time the Second Amendment was ratified, the court concluded that they are not part of the "law abiding" community to which Second Amendment protections extend. The court further noted that this was so because of a designation made by Congress in an area in which it was owed great deference, i.e., immigration. Thus, Carpio-Leon had no protections under the Second Amendment. The court also rejected Carpio-Leon's argument that he was denied equal protection under the Fifth Amendment, because 922(g)(5) survives a rational basis analysis.

Friday, December 14, 2012

US v. Hamilton: Hamilton was a member of the Virginia House of Delegates. He communicated with Old Dominion University about a new center for teaching it was looking to build, with state funds. In conversations between Hamilton and ODU (and Hamilton's wife), he made repeated references to pushing funding through the legislature and possibly coming to work at the center. Many of these conversations took place over Email, Hamilton using his work Email account. After Hamilton introduced legislation for $1 million worth of funding for the ODU center, he was offered a job there. As a result of all this, Hamilton was charged and convicted of bribery concerning federal program funds and extortion under color of official right. He was sentenced to 114 months.

On appeal, Hamilton challenged both his convictions and sentence, all of which the Fourth Circuit affirmed. Hamilton first argued that the introduction of Emails between he and his wife violated spousal privilege. The court agreed that there is a general expectation of privacy in such Emails, but concluded that because Hamilton sent the Emails from a work computer and "did not take any steps to protect" their content they were not privileged. Second, Hamilton challenged the sufficiency of the evidence supporting his convictions, which the court found was sufficient. Third, he argued that the district court erred by not instructing the jury on the difference between a bribe and a gratuity, which the court rejected because the matter of intent had been sufficiently covered in the instructions. Finally, the court affirmed the district court's calculation of the advisory Guideline range.

US v. HIlton: This appeal involves three Hiltons - Jimmy, Tamatha, and Jacqueline - who were convicted of a scheme to defraud a company where Tamatha worked. Over the course of two years, the Hiltons cashed numerous checks written by customers to the business, taking about $655,000 in the process. As part of the scheme, Jacqueline opened a bank account in her name, but falsely purporting to be the owner of the business. Jimmy endorsed the stolen checks and filled out the deposit slips. The various Hiltons were charged with 43 counts of fraud, money laundering, and identity theft. They were convicted on all but one count.

On appeal, Jimmy and Jacqueline argued that their identity theft convictions must be reversed because the statute does not contemplate the theft of the identity of a corporation. The statute refers only to the identification of "persons" and "specific individuals," which it does not define. While the Dictionary Act defines "persons" as including corporations, it does not define "individual." The court concluded that the context of the identity theft statute does not indicate whether "individual" would include corporations. Noting the ambiguity and applying the rule of lenity, the court concluded that the statute cannot be read to include corporations and reversed Jimmy and Jacqueline's convictions on those counts. It also vacated their sentences.

On all other grounds, the Fourth Circuit affirmed the convictions, as well as Tamatha's sentence. It rejected Tamatha's argument that the district court erred by rejecting her motion to suppress her post-arrest statements because she requested counsel, as well as Jimmy's argument that the district court erred by denying his motion to proceed pro se on the morning of jury selection. The court also rejected Jimmy and Jacqueline's argument that there was insufficient evidence to support their mail theft convictions, as well as the arguments of all the Hiltons as to the sufficiency of the evidence supporting their mail fraud affecting a financial institution convictions.

US v. Miguel-Torres: Miguel-Torres was convicted of illegal reentry. In the PSR, the probation officer classified his prior California conviction for "willfully threatening to commit a crime that would result in death or great bodily injury" as a "crime of violence," triggering a 16-level Guideline enhancement. Over Miguel-Torres's objection, the district court adopted the PSR's conclusion and sentenced Miguel-Torres to the bottom of the resulting Guideline range.

On appeal, Miguel-Torres argued that his prior conviction was not categorically a crime of violence and his sentence was unreasonable. The Fourth Circuit agreed. Applying a categorical approach (because the California statute at issue did not contain "divisible categories"), noting that other courts had split on the application of this statute and rejecting the approach of the Ninth Circuit. The court concluded that although the statute contains a threatened violent result, it does not have as an element the use or threatened use of physical force. As an example of a crime that could lead to a lethal result without the use of force, the court points to murder by poisoning. Miguel-Torres's sentence was vacated and the case remanded for resentencing.

US v. Hargrove: Hargrove was (in the Government's words) a "'legend' in the dog fighting community," with three prior state convictions. After he sold a dog to an undercover agent, his property was searched, uncovering numerous implements of dog fighting and training, as well as 34 dogs that later had to be euthanized. He was charged with one count of selling an animal for purposes of having it participate in an animal fighting venture and pleaded guilty. His Guideline range was calculated in the PSR to be 10-16 months, but Hargrove objected and argued it should be 0-6 months. The Government bypassed the Guideline dispute and argued for an upward variance/departure based on "extraordinary cruelty to animals, extreme conduct," and the inadequacy of his criminal history calculation. At sentencing, the district court preformed its own Guideline calculation, producing a range of 41 to 51 months, but imposed a statutory maximum sentence of 60 months. It did so, explaining that even if Hargrove's 0-6 month range had been the correct calculation it would have imposed the same sentence.

Hargrove appealed, arguing that his sentence was unreasonable. The Fourth Circuit disagreed. The court accepted the Government's concession that the district court's guideline calculations were erroneous, but found the error was harmless. The court explained that in appropriate cases is used the "assumed error harmlessness inquiry" as a way to involve the "empty formality" of remanding when the record shows such a remand would result in the imposition of the same sentence. Nothing that the district court explicitly said it would impose the same sentence regardless of the Guideline calculations, the court looked to whether the 60-month sentence was substantively reasonable, which it was.

Monday, December 10, 2012

US v. Caporale: Caporale finished serving a sentence in 2008 for a sex offense, at which time the Government filed a motion to have him committed as a "sexually dangerous person" under the Adam Walsh Act. At a hearing in March (the case was put on hold while cases addressing the constitutionality of the commitment provision were litigated), the district court denied the Government's motion, on two grounds. First, it found that Caporale did not suffer from a serious mental illness, abnormality, or disorder because he was not diagnosed with a particular condition listed in the Diagnostic and Statistical Manual or Mental Disorders ("DSM"). Second, it found that, if Caporale was released, he would not have serious difficulty refraining from sexually violent conduct or child molestation.

The Government appealed to the Fourth Circuit (Caporale's release was stayed pending appeal), which affirmed the district court's conclusion, but only on the second ground. On the first ground, the court concluded that the definition of "mental disorder or defect" is not limited to specified diagnoses set forth in the DSM. In Caporale's case, the diagnosis of hebephilia meets that definition (as well as fitting into the "paraphilia/NOS" catch all in the DSM). On the second ground, the court emphasized its limited ability to reject the district court's factual findings under an abuse of discretion standard that the district court did not clearly err by crediting the defense expert's testimony that Caporale's recent behavior (as opposed to his more serious criminal conduct in the past) showed he was not a risk to reoffend.

US v. Brown: Brown worked for an ambulance service, from which (according to the IP address) child pornography was being downloaded. Using work records, investigators concluded that Brown and his partner were always on duty when the files were downloaded. Officers arrived at the service office to execute a search warrant, but found no computers. Brown and his partner had been out on a call and, when they returned, investigators asked if they had any laptops. Brown retrieved one from the ambulance, which one of the officers then took from his hands. After Brown gave a statement in which he admitted downloading child pornography, officers obtained a warrant to search his laptop. That search uncovered videos and images of child pornography. Brown went to trial and was convicted of one count of receipt of child pornography and one count of possession of child pornography. The district court dismissed the possession count as a lesser included offense of the receipt count and sentenced Brown to 144 months in prison.

Brown raised two challenges on appeal, both of which the Fourth Circuit rejected. First, Brown argued that the district court erred by denying his motion to suppress without having an evidentiary hearing to assess whether the initial seizure of the laptop was reasonable. Brown argued that because the warrant itself only authorized a search of the ambulance service office, it did not cover the seizure of the laptop that occurred outside the building. The court rejected that argument, holding that there were exigent circumstances that supported the warrantless seizure of the laptop. Second, Brown argued that the district court should have dismissed the more serious receipt count, rather than the possession count, after trial. The court concluded that the district court "properly adhered to a long line of authorities directing vacation of the conviction that carries the more lenient penalty."

US v. Gonzales-Flores: Gonzales-Flores was charged with various drug, immigration, and firearm offenses. Two days before trial, the Government filed a notice that it would produce testimony from three expert witnesses at trial. Gonzales-Flores moved to exclude that testimony due to the late disclosure. The day before trial the district court held a telephonic hearing, in which Gonzales-Flores's counsel and the AUSA took part. Gonzales-Flores was not present (even in the ether at the other end of a phone line) and his counsel did not object to his absence. The district court denied Gonzales-Flores's motion and he was convicted on several counts and sentenced to 180 months in prison.

On appeal, Gonzales-Flores argued that under Rule 43 of the Rules of Criminal Procedure he had a right to be present at the hearing on excluding the Government's expert witnesses and his absence required reversal of his conviction. The Fourth Circuit disagreed and affirmed his conviction. Assuming, without deciding, that the telephonic hearing was a "trial stage" as defined in Rule 43(a), the court nonetheless concluded that it fell within the exception in Rule 43(b)(3), which states that the defendant's presence is not required for a proceeding that "involves only a conference or hearing on a question of law." The fact that the proper standard of review for the underlying issue of the district court's denial of the motion to exclude (had it been raised) would be abuse of discretion does not mean the hearing involved something other than a "question of law." Therefore, there was no error in Gonzales-Flores's absence, much less a plain one.

Wednesday, December 05, 2012

US v. Day: In this appeal, the Fourth Circuit heard a number of challenges to Day’s convictions and sentence for his scheme to defraud the Department of Defense, over the course of several years, involving his supply of defective and nonconforming goods for use in U.S. military aircraft, vehicles and weapons systems.

Day and three co-conspirators formed companies that bid on government contracts through a custom designed software program, and when his low bids succeeded in earning government contracts, Day would provide similar sounding, but nonconforming items, which cost him just 3.77% of the amount he received in payment from the government. Prior to discovery, Day secured nearly 1,000 government contracts, worth approximately $8.6 million. He operated this scheme from Mexico, where he directed his co-conspirators through email, phone calls, and internet chats.

Additionally, Day would deposit the proceeds of his operation in a Belizean bank account, and when that account was shut down, Day instructed his co-conspirators to convert the proceeds into gold and physically drive the gold to him from the U.S. to Mexico. Day received over $2 million in gold this way.

In August 2008, a federal grand jury indicted Day for conspiracy to commit wire fraud, wire fraud, aggravated identity theft, money laundering conspiracy, smuggling conspiracy, and obstructing justice. Day, in custody of Mexican authorities who captured him at the airport in Cancun in July 2008, was extradited by the Mexican government on all charges other than the identity theft and obstruction counts in December 2010. At the end of his eight-day trial, a unanimous jury found Day guilty on all counts.

On appeal, the Fourth Circuit considered the jury instruction on aiding and abetting liability that the government had requested at trial, and to which the defense did not object. First, Day argued that this jury instruction had the effect of constructively amending the indictment. The Fourth Circuit found that this argument failed because it has repeatedly held that a "defendant may be convicted of aiding and abetting under an indictment which charges only the principal offense." Next, Day argued that this jury instruction violated the extradition rule of specialty, which Circuit Splits discusses here.

Day also challenged his conviction for conspiracy to commit money laundering on the basis that the government did not prove that Day transported gold with the requisite design to conceal; that the gold was not a "monetary instrument or funds;" and that the trial court did not properly instruct the jury on the definition of the term, "proceeds." The Fourth Circuit held that the record was "replete" with evidence showing that Day knew that transporting the gold to Mexico would have the effect of concealing the location, nature, and source of the unlawful proceeds, but also that he transported the gold for precisely that purpose. Further, the Fourth Circuit employed the ordinary meaning of the term "funds" to find that the gold could qualify as "funds" under the money laundering statute, and that Day treated the gold as a cash equivalent.

Day argued that venue for his criminal trial in the Eastern District of Virginia was improper. The Fourth Circuit disagreed, and found that two classes of overt acts took place within the district, specifically, phone calls one conspirator made while within that district, and emails that were sent to government personnel within the district. Day also argued that the district court made two evidentiary errors at trial, by refusing to admit a government report describing mishandled evidence, and by admitting some prior bad acts of his under 404(b). The Fourth Circuit found the government report was properly excluded under 403 as improperly prejudicial, and that the prior bad acts (purchasing expensive watches, using false names, and his use of foreign bank accounts) were intrinsic to Day’s criminal conduct.

Day’s final arguments concerned the length of his sentence (105 years) and the resitution award. Day argued unsuccessfully that his guidelines-range sentence did not account for the two years he spent in custody in Mexico, but the Fourth Circuit disagreed. Sentencing Law and Policy discusses the restitution award here.

Tuesday, December 04, 2012

US v. Vaughan: The driver of a rental car, stopped in early January 2011 for traveling 79 mph in a 70-mph zone, challenged the length of time the Greenville, VA state police took in investigating his traffic violation. Appellant Vaughan failed to have evidence discovered during the traffic stop suppressed at the district court; he received a 120-month sentence for conspiracy to distribute cocaine and possession with intent to deliver cocaine. On appeal, the Fourth Circuit affirmed his sentence.

Terrence Vaughan and passenger, McKinley Scott, were heading north through Virginia around 10:43a.m., when a ten-year-veteran Virginia state trooper pulled them over for speeding. When the trooper looked into the vehicle, he observed four cell phones in the center console, two of which were "TracFones," pre-paid phones that can be obtained with no personal information, as well as a visibly nervous passenger, Scott, leaned back in the passenger seat. At the trooper’s request, Vaughan got out of his vehicle, and sat in the police cruiser, answering questions about the purpose and details of his travels. The trooper went back to the rental car and asked similar identification and travel details from Scott, who provided somewhat different responses than Vaughan’s.

Based on the cell phones, Scott’s nervousness, and the differing stories of Vaughan and Scott, the trooper requested a canine unit to come to the scene. While waiting a "couple of minutes" for the arrival of the canine unit, the trooper began filling out a contact report form, which must be filled out "on every traffic stop." During the same time, the trooper conducted background check on Scott, having confirmed the validity of Vaughan’s driver’s license. Upon arrival, the canine unit gave a positive alert for narcotics in the vehicle. The subsequent search of the vehicle revealed a handgun and 830.6 grams of cocaine. According to the trooper’s uncontested testimony, the whole stop last thirteen minutes prior to the arrival of the canine unit.

The Fourth Circuit concluded that reasonable suspicion existed at the moment the trooper determined that the suspect individuals’ explanations of their itinerary differed, approximately 6-9 minutes after the stop began. It held that when four cell phones are present in a vehicle with only two passengers, the presence of the phones constitutes a valid factor in reasonable suspicion analysis. The suspects’ conflicting answers "especially" contributed to the reasonable suspicion.

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